III. Glanvill

Glanvill is a legal treatise written around 1188, probably not by anyone named Glanvill. The treatise is organized around the writs and details procedure; in a few instances, the author abandons the writs and seems to write in terms of substantive law, detailing common custom. There had been other books on English law before, preeminently The Laws of Henry I, but they were not organized treatises, nor did they reflect anything more than diversity of law. Glanvill is carefully organized and reflects a growing centralized court. Moreover, if examined in excruciating detail, it shows the law in transition from the discretionary justice before 1176 to adherence to rules of law, from tenures as contractual arrangements to tenures as property. Glanvill is, finally, our best look at early law. The king's court has left written records (plea rolls) from 1194; although a bit sparse at the beginning, by 1200 the records have survived almost intact down to the twentieth century, constituting the longest run of European secular court records. Glanvill is an overview of the law written about six years before the plea rolls begin. Information from the early plea rolls is difficult to glean; the author of Glanvill was both literate and knowledgeable about the law and is of immense help in gaining insight into what was happening at the beginnings of English common law. The information, as always, is not without ambiguity. There is currently much debate about the interpretation of much of Glanvill. (If you are interested in seeing the difference between schools of thought about the origins of the law, see Palmer, "The Feudal Framework of English Law," 79 Michigan Law Review 1130-1140 (1981).)

III.A. Procedure in the King's Court for Land

Given the nature of Glanvill, questions will be interspersed with the text. The text, as always, is indented; the numbered paragraphs are the traditional citation references to the text.

Here begins the discussion of pleas

1.5. When anyone complains to the lord king or his justices concerning his fee or free tenement,[68] and the case is such that it ought to be, or the lord king is willing that it should be, tried in the king's court, then the complainant shall have the following writ of summons:

The writ for making the first summons

1.6. The king to the sheriff, greeting. Command [Precipe] N. to render to R. justly and without delay one hide of land in such-and-such a vill, which the said R. complains that the aforesaid N. is withholding from him. If he does not do so, summon him by good summoners to be before me or my justices on the day after the octaves of Easter, to show why he has not done so. And have there the summoners and this writ. Witness Ranulf Glanvill, at Clarendon.

1. Glanvill I.6 we shall simply call the precipe (pray-ki-pay) for land, after the first word succeeding the salutation. It is a standardized writ, with Chancery really only having to fill in the blanks with the right sheriff, the right names, the place and the amount of land, and the appropriate return day. The "return day" here is octaves of Easter; that is the date on which the writ physically must be returned to the king's court with a report from the sheriff endorsed (written on the back) concerning what he was able to do. Since it was returned, this is a returnable writ, as distinct from other writs which ordered sheriffs or others to do something but did not require a report. Returnable writs are a prerequisite for a regularly functioning central court; the court had to have some means of communication with the sheriffs who were executing the process. The existence of returnable writs that were also standardized indicates the existence of a central court developing a legal bureaucratic routine.

2. For whom is this writ appropriate? Why would one use this writ to claim a parcel of land, rather than the writ of right retailed in assignment II.C? Would it be appropriate for any claimant of land, or simply for those claimants who claim to hold directly of the king? Could there be any doubts about land tenures held directly from the king? What difference does the answer make, concerning the appropriate purchasers of the writ?

What the law is when the party summoned neither comes nor sends an essoiner in response to the first summons

I.7. On the appointed return day the party summoned either comes or does not. If he does not come, then he sends a representative or an essoiner,[69] or neither. If he neither comes nor sends anyone, the other party who is claiming against him should appear before the justices on the appointed return day and present his case against the tenant: and he shall wait three days in court. If the tenant does not come on the fourth day, but the summoners appear and allege that he has been properly summoned and offer to prove this in whatever way the court may decide, then the court shall direct that the tenant be summoned again by a further writ to come on a return day at least a fortnight later. This writ[70] shall direct him to come and answer both as to the principal plea and as to his not coming at the first summons.

Three summonses shall be sent out in this way. If the tenant neither comes nor sends anyone at the third summons, then the land shall be taken into the lord king's hand, and shall remain thus for a fortnight; if the tenant does not come within the fortnight, seisin shall be adjudged to the other party, and the tenant shall not be allowed to reopen the issue except on the question of property by means of a writ of right. If, however, the tenant comes within the fortnight and wishes to replevy the tenement, he shall be ordered to come on the fourth day, when he shall have justice done to him; and so, if he comes then, he can get back his seisin.

[The treatise then continues to retail the different essoins (excuses for non-appearance) that the tenant can cast. This consumes 22 chapters; some essoins can easily delay the plea for a whole year, as with the essoin of bed-sickness.]

The Presence of both parties

2.1. When both demandant and tenant appear together in court and the demandant claims the disputed tenement from the tenant, the tenant can ask for a view of the land. To decide whether this postponement can be allowed to him it is necessary to distinguish whether the tenant has other lands in the vill where the disputed land lies or not. For if he has no other lands there, this delay shall not be granted him. If, however, he has other lands there, a postponement shall be allowed to him, and another day assigned him to be in court. In such a case, when the tenant has left the court he can again have three reasonable essoins, and the sheriff of the county wherein the tenement lies shall be commanded by the following writ to send free men from his county to view the land: [here omitted].

The demandant's claim

2.3. When both parties appear again in court after the three reasonable essoins and the view, the demandant sets out his claim and suit as follows [this oral rendition of the claim is called the "count"]: "I claim against this N. the fee of half a knight and two carucates of land in such-and-such a vill as my right and my inheritance, of which my father (or grandfather) was seised in his demesne as of fee in the time of King Henry the First[71] (or since the coronation of the lord king),[72] and from which he took profits to the value of five shillings at least, in corn and hay and other profits; and this I am ready to prove by this free man of mine, H., and if any evil befalls him then by this other man or by this third man, who saw and heard it." (He can name as many as he likes but only one of them shall wage battle.) Or the claim may be in other words, thus: "And this I am ready to prove by this free man of mine, H., whose father in his last minutes enjoined him, by the faith binding son to father, that if ever he heard of a suit concerning this land, he should offer to prove it as something seen and heard by the dying man."

When the suit and claim of the demandant have been heard, it is for the tenant to choose whether he will defend himself against the demandant by battle or will put himself upon the assize of the lord king and seek a recognition to determine which of the parties has the greater right in the land. If he chooses to defend himself by battle, then he himself, or some suitable person on his behalf, must deny the right of the demandant word for word as he has set it out. It should be noted that once the battle has been waged [i.e., once security has been given for proceeding with the battle], the tenant must defend the land by battle, and cannot any longer put himself upon the [grand] assize.

. . .

When the battle has been fought, the vanquished champion is liable to a penalty of sixty shillings for crying craven and shall lose also his law. Moreover, if the tenant's champion is defeated, his principal shall restore the disputed land with the fruits and profits found on the fee at the time when seisin is delivered and shall never again be allowed to bring this same plea in court. For those matters which have been determined in the lord king's court as the result of a battle are settled forever.[73]

. . .

The Grand Assize

2.6. If the tenant chooses to defend himself by battle against the demandant, then the procedure is as stated above. But if the tenant prefers to put himself upon the lord king's Grand Assize, then the demandant will either do the same, or he will not. Once the demandant has stated in court that he has put himself upon the assize, and has expressly said this to the justices sitting on the bench, he cannot afterwards retract, but must stand or fall by the assize. But if he is unwilling to put himself upon the assize he must show some cause why there should be no assize between them, for example, that they are of the same blood, and descended from the same parentelic stock from which the inheritance has descended. If the demandant makes this objection, the tenant will either admit it or not.

If he admits it in court, then the assize shall not proceed, and the case shall be verbally pleaded and determined in court by means of a due enquiry as to which of them is nearer to the original stock and therefore the more rightful heir. . . .

If nothings happens to prevent the assize from proceeding, then the case will be as conclusively settled by assize as by battle.

The nature of the GRAND ASSIZE

2.7. This assize is a royal benefit granted to the people by the goodness of the king acting on the advice of his magnates. It takes account so effectively of both human life and civil condition that all men may preserve the rights which they have in any free tenement, while avoiding the doubtful outcome of battle. In this way, too, they may avoid the greatest of all punishments, unexpected and untimely death, or at least the reproach of the perpetual disgrace which follows that distressed and shameful word which sounds so dishonourably from the mouth of the vanquished ["craven"]. This legal constitution is based above all on equity;[74] and justice, which is seldom arrived at by battle even after many and long delays, is more easily and quickly attained through its use. Fewer essoins are allowed in the assize than in battle, as will appear below, and so people generally are saved trouble and the poor are saved money. Moreover, in proportion as the testimony of several witnesses in judicial proceedings outweighs that of one man, so this constitution relies more on equity than does battle; for whereas battle is fought on the testimony of one witness, this constitution requires the oaths of at least twelve men.

1. The grand assize, then, was an alternative to battle, but equally determinative. It was introduced in 1179 and shows the speed with which the king and his advisors began improving legal procedures. Much of the procedure detailed above had to have been derived in substantial part from customary practice, but it has here become a routine, and there was nothing so clearly defined in medieval English law as civil procedure; most of the law, in fact, was procedure. You should be able to see, even with this brief excerpt, the way in which procedure dominated and the speed with which the law was becoming bureaucratic. In 1176 as a consequence of the Assize of Northampton the king's court ceased being a communal court and began to utilize its justices not only as presiding officers but also as judgment-givers. You should be able to see the effect that this alteration, in addition to the increased caseload and the standardization of writs, has on the character of law. Pay particular attention to this part of the argument in Paul Brand's article "Multis Vigiliis."

2. Proceedings in feudal (little evidence) and county courts concerning land and originated by a writ of right (as above in assignment II.C: "hold full right to x") also utilized battle. The grand assize was also made available for these cases, but was reserved solely for the king's court, so that such cases had to be removed. The procedure was cumbersome. The tenant had to purchase a writ of peace directed to the feudal or county court presiding officer, whereupon proceedings would be stayed. The demandant would then have to purchase another writ to begin the process again, but now in the king's court. This writ was identical then to what the demandant would do if he had begun in the king's court by virtue of the precipe; his writ now summoned four knights to Westminster, there to elect twelve knights to serve on the grand assize. After the four knights had elected the twelve, the following writ issued out:

2.15. The king to the sheriff, greeting. Summon by good summoners the following twelve, namely A. and B. and so on, to be before me or my justices at such-and-such a place on a certain day, ready to declare on oath whether N. or R. has the greater right in one hide of land (or other things claimed) which the aforesaid R. claims against the aforesaid N., who is tenant, and in respect of which the aforesaid N., who is tenant, has put himself upon my assize and has sought a recognition to determine which of them has the greater right in the things claimed. And meanwhile the twelve shall view the land (or tenements from the services are demanded). And summon by good summoners N., who is tenant, to be there to hear the recognition. Witness etc.

. . .

2.17. When the assize reaches the stage where the recognition is made, then either the true legal position is well known to all the jurors, or else some know and some do not, or else none of them knows. If none of them knows the truth of the matter, and they have stated this on their oath in court, recourse shall be had to others until such as do know the truth of it are found. If, however, some know the truth of the matter and some do not, those who do not shall be rejected and others summoned to court until at least twelve can be found to agree on it. If some of them declare in favour of one party and some in favour of the other, then further jurors are to be added until at least twelve agree together in favour of one party. Each juror summoned for this purpose must swear that he will not declare falsely, nor knowingly suppress the truth. The knowledge required from the jurors is that they shall know about the matter from what they have personally seen and heard, or from statements which their fathers made to them in such circumstances that they are bound to believe them as if they had seen and heard for themselves.

1. The grand assize is obviously something like a jury: it is a panel of twelve men sworn to tell the truth. Are they impartial? What does the issue put to the assize entail: "who has greater right"? Is "right" clear and uncomplicated; is all the right on one side? Is there a clear distinction between law and fact contemplated? Are there any questions of law that cannot go to the grand assize? Is there any room here for witnesses?

2. What is the trial? Which part of the litigation demands more legal skill, the trial or the possible pleading about who is closer heir? Trial by battle is often referred to as a proof, not a trial, since there is no way to weigh evidence. The grand assize is a straight substitute for battle; to what extent is it a trial?

3. Book 3 of Glanvill concerns warrantors. Figure out who a warrantor might usually be. Specifically, look to see if the warrantor is really the lord, who must stand to, be loyal to, the commitment he made in taking the man's homage.

3.1. . . .

When the tenant in court vouches another to warranty, a reasonable return day is assigned him in court on which to have there this warrantor of his; and thus he can again have recourse to his essoins, namely three for himself and another three for his warrantor. When the vouchee to warranty eventually appears in court he will either warrant the thing for the tenant or not. If he is willing to warrant it for him, then the demandant shall plead solely with the warrantor, in whose name, from that moment, all the requisite pleading shall be done. . . .

If the warrantor is present in court and defaults in his warranty to the tenant who brought him there to warrant, then there shall be a plea between them, which may, in consequence of the formal words alleged therein, result in battle; and this is so whether the tenant who vouched him to warranty has a charter of his or not, provided that he has a witness who is suitable for proving the case and is willing to do so. Note also that when it is established that he who is brought to warrant is bound to warrant the thing, then from that moment he for whom he ought to warrant it cannot lose it, because, if the demandant proves in court that the thing is his, the warrantor shall be bound to give to him who vouched him an equivalent in exchange ["ESCAMBIUM"], if he has property out of which he can do this.

. . .

3.6. Moreover, a case is often delayed by the absence of lords; for example, when the demandant claims that the tenement in question belongs to the fee of one lord, and the tenant says that he himself holds it as of fee of another lord. In such a case both lords shall be summoned to court, so that the case may be heard and determined in due form in their presence, lest in their absence some injustice may seem to be done them. On the return day for which they are summoned to come to court, both or either of the lords may lawfully cast essoins, and can do this on three successive return days in the customary manner.

. . .

3.7. When both lords are present the tenant's lord will either warrant that the land in question is of his fee, or he will deny it. If he warrants it, then he shall have a choice between undertaking the denial himself and committing it to the tenant; whichever he does his rights and those of his tenant will be preserved if they are successful in the plea; but if they are defeated, then the lord shall lose his service and the tenant the land without any right to reopen the issue.

If, however, the tenant's lord is present in court and fails to make good to the tenant his warranty, then the plea can be changed into a plea between tenant and lord: for this to happen the tenant must say that his lord unjustly fails to make good to him as lord of that fee the warranty --"unjustly" because the tenant performed for him in respect of the land a specified service of such-and-such an amount (or because his ancestors performed it for him or his ancestors) -- and must produce persons who heard and saw this and some person suitable for proving it, or else some other suitable and sufficient proof of whatever kind the court may direct.

1. Understanding warranty is crucial to understanding the social basis of the common law of property. Warranty will seem to a modern as a contractual matter tangential to the actual ownership. Consider the following however. When a lord took homage from a man, the man's undertaking was good and loyal service; the lord's obligation to him was protection and maintenance. The ordinary form of maintenance was a fee: an agricultural estate that would produce sufficient income for the man to train as a knight and to be available to fight. The relationship was one of mutual obligations. If the relationship was primary, warranty was an embodiment of that primary obligation. The tenant can call the lord into court to take over the plea, as it were, to defend him. If he loses, the lord's obligation remains and takes the form of escambium.

2. A modern will think of land transfers in a property context: the new tenant will assume the exact same position as the old tenant. That is what will be referred to as a grant by substitution: new tenant substitutes for old tenant, holding of the same lord with the same obligations. Such things were rare in the twelfth century. More frequent were grants by subinfeudation: a downward grant of a part of one's holding in return for services. The lord/grantor then held the land only in lordship, but had a continuing interest and responsibility for the fee granted; the tenant was bound to the grantor and held the land in demesne. These social relationships implicating land were the primary bonds of organized society and were "vertical" relationships, not the "horizontal" relationships of property. A helpful analogy is that of modern landlord and tenant, except one must remember that in the twelfth century the landlord himself held further of another lord, from whom he held by certain services, and so on until one reached the king, who was ultimate lord. Stop at this point, and perhaps re-read the material on warranty until you can see how it was not horizontal, but vertical, how it mirrored the vertical relationships of land tenure and the mutual obligations of lord and man.

[Traditionally, these methods of granting were considered merely possible alternatives for conveyance, not as embodying substantial power differentials and actual distributions of portions of control over land and people.]

3. There follows a section on status, which we shall not cover. Note, however, that about 2/3 of the English population were villeins holding in villeinage: they were not free men, nor were the lands they inhabited protected by the common law. They did not give and could not give homage. They were not slaves but were bound to the land and, on flight, could be brought back. Their lives were governed by manorial courts. Manorial courts, dominated by the lord of the manor, however, supervised their holdings in much the same way as did the common law, so that with great regularity sons did succeed fathers in the same "peasant" holding. Nonetheless, we are not here concerned with villeins or villeinage holding. Likewise, many small free farmers did not give homage, but only fealty. They were not fighting men but farmers; they held in what came to be known as socage: protected by the common law, but not much thought about. They had access, for instance to the assize of novel disseisin, the assize of mort d'ancestor, and the grand assize. Likewise, there were growing but still very small towns, that during the late twelfth century were establishing themselves as relatively independent jurisdictional units; there tenures were not military and were diverse, but irretrievably local. There were also matters such as tenure in free alms, for lands given to the church in return for spiritual services such as prayers; each form of tenure at common law had its own rules. The classical shape of property law, however, developed around the holdings of that 5% or so of the English population that held in a military fashion with homage or in ways that derived from homage; that is where we concentrate.

The doing of homage and receipt of relief

9.1. The doing of homage and receipt of relief must now be discussed further. When anyone's father or ancestor dies, the lord of the fee is immediately bound to receive the homage of the right heir, whether the heir is a minor or of full age, provided that he is male. For women may not by law do homage, though they generally swear fealty to their lords; but, if they are married, their husbands ought to do homage for their wives' fees to their lords:[75] I say this on the assumption that the fees in question owe homage. If the heir is male and a minor, the lord ought not by law to have wardship either of the heir or of his tenement until he has received the homage of the heir.[76] For it is generally true that no one may demand service, whether it be relief or something else, from an heir, whether of full age or a minor, until he has received his homage for the tenement in respect of which he claims to have the service. A man may do several homages to different lords for different fees held of those lords; but there must be a chief homage, accompanied by an oath of allegiance, and this homage is to be done to that lord of whom he holds his chief tenement.

Homage should be done in the following form: he who is to do homage shall become the man of his lord, swearing to bear him faith of the tenement for which he does his homage, and to preserve his earthly honor in all things, saving the faith owed to the lord king and his heirs. It is evident from this that a vassal may not attack his lord without breaking the faith of his homage, except perhaps in self-defence or when he goes by royal command with the king's army against his lord. In general it is true that he may not, without breach of the faith of homage, do anything which works to the disinheritance or bodily dishonour of his lord.[77] If anyone has done several homages for different fees to different lords who are attacking each other, and his liege lord commands him to personally with him against another of his lords, he must obey his command in this matter, but saving to that other lord the service for the fee which he holds of him.

It is clear from what has been said above that if anyone does anything to the disinheritance of his lord and is convicted of it, he and his heirs shall by law lose the fee which he holds of him.[78] It will be the same if anyone lays violent hands on his lord to hurt him or to do him a dreadful injury, and this is lawfully proved against him in the proper court. But I put this question: is anyone bound to defend himself on such charges against his lord in his lord's court; and may his lord distrain him to do so by award of his court without a command from the lord king or his justices, or without a writ from the lord king or his chief justice? The answer is that anyone may lawfully bring his man to trial and distrain him to come to his court by judgment of his court; and, unless he can clear himself against his lord by swearing three-handed [i.e., his own oath and that of two others] or with as many as the court shall direct, the whole of the fee which he holds of that lord shall be at the lord's mercy.

I also put this question: may a lord distrain his man to come to his court to answer a complaint by the lord that he is withholding service, or that some of the service is in arrears? The answer is that he may lawfully do so, even without a command from the lord king or his justices; and the proceedings between lord and man may result in battle or the grand asize if one of the man's peers offers himself as a witness who has seen the tenant or his ancestors do such service for that fee to the lord or his ancestors, and is ready to prove it. If the tenant is convicted of the charge, he shall by law be disinherited of the whole fee which he holds of that lord. Where, however, anyone is unable to justice his tenants, it is then necessary to resort to the Curia [king's court].*

Any free male may do homage, whether he is of full age or a minor, and whether a clerk [i.e., cleric] or a layman. Consecrated bishops do not do homage to the lord king even for their baronies, but swear fealty accompanied by an oath; but bishops-elect do homage before their consecration.

1. In regard to the passage preceding * above, first, what does this mean? If your rent is in arrears, or if you disagree with your lord about part of your rent or services, can you lose the whole tenement? Why not just that part that is disputed (when you have as your fee, say, two manors, and you and the lord are agreed on the services due from one, but not on the other)? What does this indicate about tenant's claim to "own" land?

[Traditonally, homage was only seen as the ritual for initial receipt of property in land, and thereafter only as a relatively useless ritual that each further generation had to perform, without actual relevance for relationships or power: a merely "legal" act.]

2. In regard to the same passage, as will appear in the next few classes, the fact that the tenant will have to answer in the lord's court without the lord having to obtain a writ of right must mean that such matters as are here listed are not considered "answering for the free tenement." There is no dispute here over who the proper tenant is, but only as to whether he might have forfeited the tenement for failure to perform his obligations. The distinction drawn here has been labelled by modern historians as that between proprietary matters (who is the rightful tenant)(matters that cannot be brought into question without a writ) and disciplinary matters (which could still be handled in the lord's court without a writ. What relevance here is the assize of novel disseisin?

[Traditionally, "no man need answer for his free tenement without a royal writ" was seen as only a royal rule requiring a licence purchased from the king before initiating a property dispute, poorly stated early on, better understood toward the end of the reign of Henry II, but not related originally to any feudal duty of the lord's adherence to his accepted tenants.]

3. It will be apparent that because of the Assize of Northampton, c. 4 and the workings of the writ of right, the king's court considers the determination of the heir a matter of law, not of fact:

a. eldest son excludes other sons and all daughters

b. daughters will divide an inheritance when there is no male descendant

c. lacking a descendant of x, the decedent, one will refer to x's father's (or, later on, if the land came from mother's side, mother's) descendants; lacking which to that father's father's descendants and so on, ruled then by a and b.

d. after 1216 it rapidly becomes true that a child's descendants will represent him, that is, son A predeceases father B but leaves a child C; C will succeed to B's land in the same way that A would have, had he not predeceased B.

e. ascendants are excluded: that is, a father will never inherit from his son; although one will revert back to parents then to seek descendants as in c, land almost must in some way descend (back to grandfather but then down to grandfather's second son).

4. What sense does this make socially? If a lord has a personal relationship with his men, and if this is vital to power, is not the decision about who will be accepted as new tenant and heir the most vital decision possible? Or is that decision relatively uncontroversial? Can loyalty pass down the generations as easily as land? And does it make any difference who gets the land if the lord can, with the approval of his court, disinherit any tenant who proves unsatisfactory? Which is more important to the lord: proprietary matters or disciplinary matters? Does the existence of disciplinary jurisdiction influence your decision about whether or not tenants owned property? As long as the lords retained their disciplinary jurisdiction so that they could evict unreliable tenants in their own court, then the imposition of mort d'ancestor was not vital, nor did it defeat the lord's fundamental position of power.

9.2 Homage is only done for lands, for free tenements, for services, and for rents precisely fixed in money or in kind. But for mere lordship no homage is done except to the king. Moreover, homage is not invariably due for all lands: it is not due for dower;[79] nor is it due, until the third heir, either for free maritagium[80] or for the fee of younger sisters holding of the eldest; nor is it due for a fee given in free alms, or from the husband of a woman to whom a tenement is given in any way as a marriage portion.

Persons to whom homage is due

9.3. Homage may be done to any free person whether male of female, whether of full age or a minor, whether a clerk or a layman. It should be known, however, that if anyone does homage for a certain tenement to a woman who afterwards marries, he is bound to do homage for the same tenement to the husband.

But it is uncertain whether one who, by a concord made in court, recovers a certain tenement against another who has previously paid relief for that tenement to the chief lord ought to pay a further relief for that tenement.

9.4. The bond of trust arising from lordship and homage should be mutual so that the lord owes as much to the man on account of lordship as the man owes to the lord on account of homage, save only reverence.[81] Therefore if anyone gives to another a tenement in return for service and homage, and a third party afterwards proves his right to it against the tenant, the lord will be bound to warrant him that tenement or give him equivalent lands in exchange. But it is different in the case of a person who holds his fee as his inheritance from another to whom he has done homage for it, for even if he loses the land the lord will not be bound to give him equivalent lands in exchange.

. . .

Lords may sometimes, for reasonable cause, postpone the receipt of homage and relief for their fees, for example, if a person other than he who asserts himself to be heir claims the right in the inheritance: for homage should not be received nor relief given while the case is in progress. Again, if the lord thinks that he himself has a right to hold the inheritance in demesne, and impleads the person in seisin by a writ of the lord king or his justices, the tenant may put himself upon the grand assize of the lord king;[82] the form of procedure in such a case was explained [above], subject to variation on a number of points as appears from the following appropriate writ:

[the issue is whether "N has the greater right to hold of R. or R. to hold as his demesne"]

[68] All fees are free tenements, that is, all heritable estates are held at least for life. A life estate, however, is a free tenement without being a fee, since it is obviously not heritable (being held only for life.)

[69] An essoiner is not a representative like an attorney (who stands completely as the party in the eyes of the court), but someone who comes to give the party's excuse for not attending on the day.

[70] Note that the original writ, the writ that originates the case, issues from chancery, whereas succeeding writs that order the mesne (middle) process to get the defendant or tenant into court to answer issue from the court itself. Thus the order that gives the court jurisdiction comes from chancery; once the court has jurisdiction it issues the further commands necessary to proceed with the case. The first writ is the original writ; succeeding writs are judicial writs.

[71] This specification, the year 1135, retains the result of the compromise between Henry II and Stephen to restore the disinherited. Succeeding years until 1154 are irrelevant.

[72] That this is a remedy for more than the compromise is clear from the specification here of years since 1154.

[73] Judicial combat as a method of trial is more than simply letting the stronger contestant take. Like trial by ordeal (of which more later), it is a method of putting the matter before God. One literary judicial combat, between Sir Gawain and Sir Lancelot concerned Lancelot's killing of Gawain's honorable brother. Lancelot had done the deed, but without knowing who it was he was killing. Lancelot had apologized and offered to do homage to Gawain and go on pilgrimage alone: a powerful offer from such a proud knight. Gawain refused to accept such an offer. That refusal put Lancelot in the right, although marginally. Thus when they went into combat they fought all day, fairly evenly, with Lancelot only prevailing at the end of the day. In the same way, judicial combat about appropriate tenancy would weigh all matters relevant, theoretically, in God's determination of who should prevail.

[74] There were no courts of equity at this point and no separate system of equity law. "Equity" here simply means fairness.

[75] Why should a husband do homage to the lord for his wife's fee, that is, when she "inherits". Whose land is it if he does homage to the lord? What if the marriage is annulled by reason of consanguinity or prior contract? Would the husband claim by inheritance or as a new grant from the lord? Could the lord be bound to warranty in such a situation? Should he be?

[76] Mort d'ancestor would result in putting the heir on the land even if the lord did not want to receive his homage. The lord could not take the services until he had taken homage. If a lord took this tenant's homage, however, he would be obliged on a writ of right then to warrant that tenant and thus might be bound to provide escambium. A lord might well resist taking the homage of the tenant who had won by mort d'ancestor. The most reliable title, however, was the lord's receipt of homage. Thus tenants would often initiate a suit (de homagio capiendo) seeking to compell the lord to take homage.

[77] Does this passage might it difficult for a tenant to engage in judicial combat against his lord? Might this account for as much of the popularity of the grand assize as the "superior rationality" of the grand assize.

[78] This is the lord's disciplinary jurisdiction. Note that the offense need not be related to any part of the land, but is simply a breach of the duties of homage. The relationship is primary; a tenant's claim on land was still more contractual than property-like. The lord's proprietary jurisdiction has to do with deciding who should be tenant; it is exercised only at the beginning of a person's tenure. The lord's disciplinary jurisdiction concerns a decision about whether an acknowledgedly appropriate tenant should forfeit his fee because he has violated his obligations.

[79] If a second husband did homage for his wife's dower, the lord would be recognizing the dower land as heritable in the new husband, whereas the land should revert to the heir of the first husband.

[80] Maritagium is a way of establishing a cadet line from daughters. Taking homage would mean that the husband was being treated as a stranger and thus would have the land heritably. Maritagium, however, was designed rather to revert back to the grantor or his heirs if the line failed. Only at the third heir (the fourth generation to hold) was the tenant actually a stranger by their social mores, that is, no longer part of the family, so that homage would be taken.

[81] Note that the homage relationship is one of mutual benefit. This mutuality is one source of the social conviction in Anglo-American constitutional law that government must also be beneficial for the governed, even at those times when still the governing power was vested firmly in the king.

[82] Consider this carefully. A lord considers that the decedent only had a life estate, but the assize of mort d'ancestor has put the heir onto the land. The lord feels he has a claim and must bring a writ. The only writ available for him would be the writ of right (if he claimed to hold it from another lord) or the precipe of first summons (if he claimed to hold it directly for the king). Would the tenant want to do judicial combat with the lord from whom he claimed to hold? Might this explain why no example of mort d'ancestor appears before 1179, when the grand assize was made available in the writ of right? That is, the lord's recourse after the heir's recovery might have seemed so unjust if battle was the only option that mort d'ancestor could not be implemented. Plausibly, had judicial combat been pursued, the tenant, even winning, might have been disseised (or might have been at least greatly disadvantaged) for striking his lord. This consideration also might explain why the grand assize was only available in the king's court (either for cases begun there, or removed by the process into the king's court). In all such cases, the writ of right would have gone to the lord's lord, who would have no interest in the case and would only observe that the lord was in possession of the land, albeit only in the possession of the service from the land from the tenant. He would naturally always default, prompting removal first to county and then to the king's court if not directly to the king's court by initiation of the grant assize procedure.